Dismissal during the probationary period in the event of a request for part-time work by a pregnant worker
The Netherlands Institute for Human Rights (the Institute) will examine the question of whether a pregnant employee's request for part-time employment in the event of a dismissal during the probationary period constitutes discrimination on the grounds of pregnancy/sex.
What was going on in this case?
The employee joined a company on 5 February 2019 on the basis of a fixed-term employment contract for a period of seven months. The working hours were 40 hours per week and there was a trial period of two months. Before the start of her employment, the employee told the employer that she was pregnant. One month after commencement of the employment the employee told her employer that she wanted to work part-time after her maternity leave. On 3 April, one day before the end of the probationary period, the employer terminated the employment contract because the employee would be less flexible by reducing her working hours. The termination during the probationary period had nothing to do with the employee's performance.
The employee is of the opinion that this is a case of discrimination on the grounds of pregnancy/sex. The employer contests this and claims that he terminated the employment contract because a married family member of the employer had fallen in love with the employee. This caused problems in the company. The employer gave another reason for the termination, because he felt that he would humiliate the employee if he mentioned the real reason.
Distinction on the basis of gender in the case of termination
An employer may not directly or indirectly distinguish between men and women when terminating an employment contract. Direct discrimination on the grounds of sex is also considered to include discrimination on the grounds of pregnancy and maternity (section 7:646 subsections 1 and 5 of the Dutch Civil Code). During the probationary period, an employment contract can be terminated without the necessity of a reasonable ground for doing so, but the employer may not abuse this power. Abuse occurs when it must be assumed that the reason for termination is based on discrimination.
Judgment of the Institute: no discrimination
The Institute rules that Article 7:646 of the Dutch Civil Code does not create a right to work part-time and that an employer therefore does not make a gender distinction if he does not honour a request to work less or if this request is a reason to terminate the employment contract during the trial period. The fact that the employee wants to work less because she will soon be a mother is insufficient to assume that the employer has made a distinction on the basis of sex. The Insitute concludes that the employer did not make a prohibited distinction on the grounds of sex by terminating the employment contract with the employee during the probationary period.
Importance for practice
In principle, "wanting to work part-time" is not linked to one's sex. However, it is a fact that in the Netherlands more women than men work part-time. A dismissal during the probationary period due to the desire to work part-time will therefore affect women more often than men. Despite this judgement of the Institute, it remains important to reflect on the actual grounds for the dismissal in the event of a (probationary) dismissal, in order to avoid the presumption of indirect discrimination.